Top ten power of attorney questions

1. What can I do if I can't sign a power of attorney because of a disability? Can someone sign for me?Yes, but there are special rules you must follow. It's best to get advice from your lawyer or the Public Guardian/Advocate in your State.

2. I gave a power of attorney to my nephew, which is enduring. I thought it was only for financial issues, but he says it's also for medical decision making. Is that right?No. There are other powers of attorney for this. See the fact sheets for more details.

3. Is it better to have more than one attorney?This is up to you, but it's worth thinking carefully about it. Some powers of attorney only allow one decision maker plus a back-up – where more than one is allowed, it is helpful if you have a good reason (e.g. siblings who should act together, or you are unsure if one should act on their own, or to allow the power to continue if one attorney dies or cannot act). See our fact sheets for information about appointing "jointly" or "severally".

4. What if I don't know anyone suitable to appoint for a financial power?You can appoint a trustee company, or anyone (e.g. a lawyer, an accountant, a business advisor).

5. Should I pay my attorney?This is not necessary to give legal affect to the power, and for a financial power would normally only be considered if the attorney(s) is a professional.

6. Can my enduring guardian make medical decisions?This is complicated. Where the law allows it, and there are co-existing medical and guardianship enduring powers of attorney, there is an overlap, and you should check what happens. There are also more limited powers to refuse medical treatment.

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7. Does a general power of attorney last after I have an accident and cannot make legal decisions for myself?No. You must have a financial enduring power of attorney for this.

8. How do I know if my uncle has sufficient mental capacity to make a power of attorney?There is no simple formula, but in general terms he must be able to:

understand the major consequences of a decision;

take responsibility for making that choice; and

make a choice based on the risks and benefits that are important to him.

If there is any doubt about his capacity, it's best to get in touch with his doctor and ask for a written opinion. You may also want to arrange for a neuropsychological assessment of capacity. Remember, different powers require different levels of understandings.

9. My mother wants to change her enduring power of attorney in favour of a cousin, but she has late stage Alzheimer's and her neurologist says she doesn't understand the issues? Can she do this?No, not if her specialist doctor believes she does not have sufficient capacity. You should get in touch with a lawyer if there is likely to be any issue with your cousin.

10. What if I want two attorneys to make decisions at the same time and together about medical treatment?This can only be done if the law allows. For instance, in Victoria, you can only have one primary medical enduring attorney, and another alternative. They do not act together.